Lockheed Martin Corporation v. steven craven
Claim Number: FA1512001652899
Complainant is Lockheed Martin Corporation (“Complainant”), represented by Lynne M. J. Boisineau of McDermott Will & Emery LLP, California, United States. Respondent is steven craven (“Respondent”), Michigan, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <skunkwerksconsulting.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 17, 2015; the Forum received payment on December 17, 2015.
On December 17, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <skunkwerksconsulting.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 21, 2015, the Forum served via e-mail the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 11, 2016, by which Respondent could file a Response to the Complaint, upon all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts and postmaster@skunkwerksconsulting.com. Also on December 21, 2015, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On January 15, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant uses its SKUNK WORKS mark in connection with its manufacturing, product design, research, technical consulting, and advisory services for commercial and military aircraft and related equipment.
Complainant holds a registration for the SKUNK WORKS service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) (Registry No. 2,652,258, registered November 19, 2002).
Respondent registered the domain name <skunkwerksconsulting.com> on September 23, 2014.
The domain name is confusingly similar to Complainant’s SKUNK WORKS mark.
Respondent has not been commonly known by the domain name or any variant of Complainant’s SKUNK WORKS mark.
Respondent is not licensed or otherwise authorized to use Complainant’s SKUNK WORKS mark.
Respondent is not making a bona fide offering of goods or services by means of the domain name or a legitimate noncommercial or fair use of it.
Respondent uses the domain name to resolve to a website that, for commercial gain, hosts hyperlinks to other websites unrelated to Complainant’s business.
Respondent has no rights to or legitimate interests in the domain name.
Respondent’s use of the domain name creates a likelihood of confusion among Internet users as to the possibility of Complainant’s affiliation with or endorsement of Respondent’s website.
Respondent registered the domain name with actual knowledge of Complainant and its rights in the SKUNK WORKS mark.
The domain name is an instance of typo-squatting.
Respondent registered and is using the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1)the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2)Respondent has no rights to or legitimate interests in respect of the domain name; and
(3)the same domain name was registered and is being used by Respondent in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept all reasonable allegations and inferences set out in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant has rights in its SKUNK WORKS service mark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (As the [Complainant’s] mark is registered with the USPTO, Complainant has met the requirements of Policy ¶ 4(a)(i)).
Turning to the central question posed by Policy ¶ 4(a)(i), the Panel conclude from a review of the record that the <skunkwerksconsulting.com> domain name is confusingly similar to Complainant’s SKUNK WORKS service mark. The domain name incorporates nearly the entirety of the mark but for the substitution of a single letter, and with that substitution the core of the domain name remains a phonetic equivalent of the mark. Apart from this, the domain name adds the generic term “consulting,” which relates to an aspect of Complainant’s business, eliminates the spacing between the terms of the mark and adds the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See Hewlett-Packard Co. v. Cupcake City, FA 93562 (Nat. Arb. Forum Apr. 7, 2000) (finding that a domain name which is phonetically identical to a UDRP complainant’s mark does not pass muster under ¶ 4(a)(i) of the Policy). See also Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where a contested domain name contained the identical mark of a UDRP complainant combined with a generic word or term). Further see Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between the terms of the mark of a UDRP complainant and the addition of a gTLD to the same mark in creating a domain name do not establish distinctiveness from that mark under Policy ¶ 4(a)(i)).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in a disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.)
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, the Panel examined the record, in light of the considerations set out in Policy ¶ 4(c), to determine whether there is any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name which are cognizable under the Policy.
The Panel begins by noting that Complainant asserts, and Respondent does not deny, that Respondent has not been commonly known by the contested <skunkwerksconsulting.com> domain name or any variant of Complainant’s SKUNK WORKS service mark, and that Respondent has no license or other authorization to use Complainant’s mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “steven craven,” which does not resemble the domain name. On this record the Panel conclude that Respondent has not been commonly known by the disputed domain name so as to have demonstrated that it has acquired rights to or legitimate interests in it within the meaning of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that a respondent was not commonly known by the <coppertown.com> domain name, and therefore failed to show that it had rights to or legitimate interests in that domain name as provided in Policy ¶ 4(c)(ii), where there was no evidence in the record, including the relevant WHOIS information, suggesting that that respondent was commonly known by the domain name).
The Panel next observes that Complainant contends, without objection from Respondent, that Respondent uses the <skunkwerksconsulting.com> domain name, for profit, to resolve to a website hosting hyperlinks to other websites unrelated to Complainant’s business. This use of the domain name is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). As a result, Respondent cannot claim shelter in a finding of rights or legitimate interests in the domain name under either of those provisions of the Policy. See Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that a respondent had no rights to or legitimate interests in a disputed domain name under Policy ¶ 4(c)(i) or ¶ 4(c)(iii) where it used a disputed domain name to operate a website featuring links to other websites offering goods and services unrelated to the business of a UDRP complainant).
Therefore, the Panel finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
The Panel is persuaded by the evidence that Respondent uses the contested <skunkwerksconsulting.com> domain name, which is confusingly similar to Complainant’s SKUNK WORKS service mark, to attempt to profit from confusion thus caused among Internet users as to the possibility of Complainant’s association with the domain name. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in the registration and use of the domain name. See Ass’n of Junior Leagues Int’l Inc. v. This Domain Name May Be For Sale, FA 857581 (Nat. Arb. Forum Jan. 4, 2007) (finding that a respondent’s use of a disputed domain name to maintain a pay-per-click site displaying links to the websites of commercial enterprises unrelated to the business of a UDRP complainant suggested bad faith registration and use under Policy ¶ 4(b)(iv)).
The Panel is also convinced that the <skunkwerksconsulting.com> domain name is an instance of typo-squatting, i.e.: the deliberate misspelling of the mark of another in framing a domain name so as to take advantage of typing errors made by Internet users when entering into their web browsers the marks of enterprises with which they wish to do business. This too is proof of bad faith registration and use of the domain name. See, for example, K.R. USA, INC. v. SO SO DOMAINS, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (finding that a respondent’s registration and use of the <philadelphiaenquirer.com> and <tallahassedemocrat.com> domain names capitalized on the typographical errors of Internet users seeking a UDRP complainant's THE PHILADELPHIA INQUIRER and TALLAHASSEE DEMOCRAT marks, thus evidencing bad faith through typo-squatting under Policy ¶ 4(a)(iii)).
Finally, under this head of the Policy, it is evident that Respondent knew of Complainant and its rights in the SKUNK WORKS mark when it registered the <skunkwerksconsulting.com> domain name. This is further proof of Respondent’s bad faith in registering the domain name. See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of a UDRP complainant’s YAHOO! mark at the time of its domain name registration).
Therefore, the Panel finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <skunkwerksconsulting.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: January 22, 2016
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